There's another bill in the works, the Employment Non-Discrimination Act (ENDA), that would prohibit private-sector anti-LGBT discrimination under the same terms that prohibit racial discrimination. President Bush has never rescinded President Clinton's executive order banning anti-LGBT discrimination in the federal government, so there's a possibility he might sign it.The error I made at the time was my casual use of the term "LGBT." There is in fact no executive order prohibiting "LGBT" discrimination in the federal government; Executive Order 13087 prohibits discrimination on the basis of sexual orientation, but does not include gender identity. This means that transgender Americans are not protected from discrimination within the federal government apparatus.
But homophobes shouldn't be worried: Given recent history, I have little doubt that the Democratic Congress will find some way to kill the legislation and blame it on the Republicans. After all, wouldn't it be a terrible development for Democrats if our right-wing president were the first in U.S. history to extend full civil rights protection to LGBTs?
So now the LGBT-inclusive ENDA has come up for a vote, but co-sponsor Rep. Barney Frank (D-MA) has stripped gender identity language from the bill. The general view on Capitol Hill seems to be that the bill is headed for failure anyway, but there's little reason for certainty on that point. For starters, President Bush still hasn't threatened to veto the legislation. His silence is the key factor here. If we knew, somehow, that the legislation would be vetoed and would not have the two-thirds majority necessary to override a veto, then there would be no reason for Congress not to include gender identity in the ENDA. If you're going to propose symbolic legislation, it makes sense for it to be symbolic in all the right ways.
But Rep. Frank is no dummy, and he wouldn't have stripped trans-inclusive language from the bill if he didn't have a good reason. The optimistic explanation is that there is some chance that a sexual orientation ENDA might actually become law this year, which would be great news for lesbians, bisexuals, and gay men living in the 34 states where it is still perfectly legal to fire an employee solely on the basis of sexual orientation. It wouldn't be perfect, but it would be a huge step forward and it would have a significant effect on people's lives right now.
The pessimistic explanation is that he is trying to move the ENDA debate to the center so that, if things go well for the Democrats next November, the next Democratic president will be able to sign the less comprehensive, and less controversial, ENDA. And this is why some, and I would venture to say most, full-spectrum LGBT rights activists are concerned.
So that's the conundrum. A signed-into law sexual orientation ENDA trumps symbolic legislation, obviously--but if we're going to have symbolic legislation anyway, it should be trans-inclusive symbolic legislation.
The debate would be rendered moot if President Bush would just take a position on the ENDA, but then why would he? Let's assume, for the sake of argument, that he's actually open to the prospect of signing a sexual orientation ENDA. Why volunteer that information and upset his right-wing base, when his approval rating is already low, if the sexual orientation ENDA will never appear on his desk anyway?
Or let's assume, for the sake of argument, that President Bush isn't open to the possibility of signing a sexual orientation ENDA. Why volunteer that information, and upset moderates, when he can sit back, prop his feet up, and watch the Democratic Party and LGBT rights activists duke it out?
I've been critical of leadership in the Democratic Congress before, I think rightly, but in this case criticism of Congress may be misplaced. The issue is not so much Rep. Pelosi or Rep. Frank. It's President Bush. Whether the sexual orientation ENDA will become law this year, or just one more in a long series of symbolic Democratic legislative proposals, is ultimately up to him. Perhaps the best solution for Democrats in Congress would be to pass two bills--a sexual orientation ENDA and a gender identity ENDA--in rapid succession. This would demonstrate Congress' symbolic commitment to the full spectrum of LGBT rights without doing so at the expense of a potentially non-symbolic legislative victory.